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Post Williams-Yulee

In its April 2015 decision upholding the prohibition on judicial candidates personally soliciting campaign contributions, the U.S. Supreme Court noted that “30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to” Florida’s challenged provision, citing the amicus brief of the American Bar Association. Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (U.S. 2015). One of the 9 states without the personal solicitation clause was New Mexico; in 2015, the New Mexico code of judicial conduct stated in a comment “[c]andidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule . . . .”

That changed, however, effective November 1, 2015, after the New Mexico Supreme Court amended the code. The Court added a provision (Rule 21-402A(2)(c)) that states a judicial candidate shall not “solicit funds for a candidate or a political organization, or make a contribution to a candidate,” deleted the prior comment, and substituted a comment that explains, “candidates for judicial office shall not personally solicit or personally accept campaign contributions.”

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Pursuant to the certification of a U.S. District Court, the Kentucky Supreme Court answered questions regarding 3 rules in the state’s code of judicial conduct that had been challenged in a federal lawsuit. In re Winter (Kentucky Supreme Court February 18, 2016). Noting that the federal court had expressed skepticism about the constitutionality of the provisions, the state court concluded that its interpretations fell well within the requirements of the First Amendment based on the analysis of the underinclusive and overbreadth arguments in Williams-Yulee.

The Kentucky Supreme Court held that the rule in the code prohibiting a judge or judicial candidate from campaigning “as a member of a political organization” (Kentucky judicial elections are, by constitution, non-partisan) “prohibits the dissemination of campaign materials and other public representations suggesting to the voters that the candidate is the endorsed judicial nominee of a political party,” while allowing the candidate (pursuant to a previous federal court decision) to simply identify herself as a member of a party. The Court also stated that the prohibition on a judge or judicial candidate acting “as a leader” or holding “any office in a political organization” meant “occupying a formal position with a recognized title or performing a function within the established organizational structure of an association whose principal purpose is to further the election or appointment of candidates to political office” and “efforts to advance the political agenda of the party in a less formal way through proactive planning, organizing, directing, and controlling of party functions with the goal of achieving success for the political party,” including “acting formally or informally as a party spokesperson; organizing, managing, or recruiting new members; organizing or managing campaigns; fundraising; and performing other roles exerting influence or authority over the rank and file membership albeit without a formal title, including . . . hosting political events.”

Finally, the Court interpreted the prohibition on a judge or judicial candidate “knowingly, or with reckless disregard for the truth, misrepresent[ing] any candidate’s identity, qualifications, present position, or mak[ing] any other false or misleading statements” to include a statement “that is not factually true in the normal sense; that is, an untrue utterance,” but not “expressions of subjective opinions or innocuous campaign-trail ‘puffing’ . . . .” The Court concluded that the rule prohibited a judge from requesting voters to “re-elect” her to a judicial office when, in fact, she held office by a gubernatorial appointment.

Click here for an analysis of the challenges to code of judicial conduct provisions since the U.S. Supreme Court’s 2002 decision, Republican Party of Minnesota v. White.